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Wednesday, January 4, 2012

Red Alert: New Unconstitutional Presidential Power Grab May Be Imminent

Obama sets up clash with Congress over recess banking pick

Congressional officials said President Obama used his recess appointment powers Wednesday to name a head for the controversial Consumer Financial Protection Bureau in a move Republican lawmakers said amounted to an unconstitutional power grab.

The president acted just a day after the Senateheld a session — a move that breaks with at least three different precedents that said the Senatemust be in recess for at least three days. Mr. Obama himself was part of two of those precedents, both during his own time in the Senateand again in 2010 when one of his administration’s top constitutional lawyers made the three-day argument to the Supreme Court.

The appointment in question is former Ohio Attorney General Richard Cordray, whom Mr. Obama tapped to head the CFPB. The board was set up under the new Wall Street regulation bill Democrats powered through in 2010, just before losing their majority in the House.

Using sharp language, congressional Republicans said the Senateconsiders itself still in session for purposes of recess appointments, and said Mr. Obama’s move is a declaration of battle against Congress.

“Although the Senate is not in recess, President Obama, in an unprecedented move, has arrogantly circumvented the American people,” said Senate Minority Leader Mitch McConnell, Kentucky Republican.

“The precedent that would be set by this cavalier action would have a devastating effect on the checks and balances that are enshrined in our Constitution,” the Ohio Republican said in a statement.

The White House, though, argues Republican senators stonewalled the nominee so long that Mr. Obama had no choice but to circumvent them.

The president is expected to introduce Mr. Cordray during a trip to Ohio Wednesday, and the Associated Press Mr. Obama will call SenateRepublicans’ ongoing blockade of his nomination “inexcusable.”

“I refuse to take ‘No’ for an answer. I’ve said before that I will continue to look for every opportunity to work with Congress to move this country forward. But when Congress refuses to act in a way that hurts our economy and puts people at risk, I have an obligation as president to do what I can without them,” he will say, according to prepared remarks.

Administration officials told the Associated Press they anticipate the move may be challenged in court.

Mr. Cordray was accompanying the president on a trip to Cleveland, Ohio Wednesday, and briefly spoke to reporters.

He said he would begin work immediately, adding: “We’re going to begin working to expand our program to non-banks, which is an area we haven’t been able to touch until now.”

The Constitution gives the president the power to make appointments when the Senate is not in session and able to confirm them. Traditionally that has been understood to mean when the Senate has adjourned for a recess longer than 10 days, and a Clinton administration legal opinion said a recess must be at least three days.

Mr. Obama’s own top constitutional lawyers affirmed that view in 2010 in another case involving recess appointments. Asked what the standard was for making recess appointments, then-Deputy Solicitor General Neal Katyal told the justices the administration agreed with the three-day rule.

“The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than three days,” Mr. Katyal said.

The three-day rule was also the precedent Mr. Obama and his fellow Democrats followed in 2007 and 2008 when they were trying to block then-President George W. Bush from making recess appointments.

“I am keeping the Senate in pro forma to prevent recess appointments until we get this process back on track,” Senate Majority Leader Harry Reid, Nevada Democrat, said on Nov. 16, 2007, as he announced his strategy of having the Senate convene twice a week for pro forma sessions.

“I support President Obama’s decision to make sure that in these tough economic times, middle-class families in Nevada and across the country will have the advocate they deserve to fight on their behalf against the reckless practices that denied so many their economic security,” he said.

But by abrogating decades of understanding on the recess appointment power, Mr. Obama threatened to spark a full legislative war withCongress.

“Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch,” Mr. McConnell said.

Red Alert: New Unconstitutional Presidential Power Grab May Be Imminent

Posted · 12 hours ago by Capitol Confidential - BigGovernment.com

Senate Republicans have been holding up the confirmation of Richard Cordray to head the new Consumer Financial Protection Bureau until changes to the agency’s structure are made to provide oversight and accountability at the agency. But sources from inside the Capitol tell Capitol Confidential that a recess appointment of Richard Cordray to head the unconstitutional CFPB could come as early as tomorrow.

“We have been hearing consistently from the Senate offices that the President is considering a recess appointment of Richard Cordray along with a slew of other controversial nominees in the brief period between the two sessions of Congress,” a key Senate source said. “Now we are hearing from Senior Democrat staffers that something big is coming tomorrow [Jan 4].”

Article II, Section 2 of the Constitution provides the president with the power to “fill up all Vacancies that may happen during the Recess of the Senate.” The problem for the president and his liberal allies is that the Senate has not recessed and technically remains in session. However, liberal groups are pressing the White House to invoke the “Roosevelt Option” to stack key government positions with radicals ready to carry out an anti-business, pro-big labor regulatory agenda. The Roosevelt Option is coined from the actions of Teddy Roosevelt who in 1903, in a split-second between two congressional sessions of Congress, made more than 100 recess appointments. In 2012, Congress will need to move from the First Session of this current Congress to the Second Session. Liberals claim the fraction of a second between the sessions is enough to trigger presidential power.

Others are more brazenly calling for the president to invoke presidential powers never before contemplated. Some have even suggested the president declare the Congress in recess, like a tinhorn dictator from a Third World country.

But even invoking the so-called “Roosevelt Option” may not solve the liberals’ conundrum. Sources tell Capitol Confidential that the statute creating the CFPB demands that the director be confirmed by the Senate—not installed via recess appointment—to trigger the agency’s shift from Treasury to the Fed and empower the Director.

But none of the legal or constitutional arguments may matter much. Liberals and the Obama administration appear poised to forge ahead with an outrageous and unconstitutional power grab. And by the time the courts work it out, so much damage will already be done.

So, let’s be clear about what is happening here: The President of the United States is planning to use an obscure precedent to claim that a split second in time empowers him to go around Congress to appoint a director to an agency that has broad unchecked, almost dictatorial powers to regulate business in America with little or no oversight from the peoples’ representatives in Congress.

Such actions by the president would be an open declaration of war on constitutional principles and completely undermine our system of checks and balances. These kinds of power grabs are exactly how Banana Republics are born.

President Obama today made an unprecedented “recess” appointment even though the Senate is not in recess – “a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” according to Senate Republican Leader Mitch McConnell (R-KY).

It turns out that the action not only contradicts long-standing practice, but also the view of the administration itself. In 2010, Deputy Solicitor General Neal Katyal explained to the Supreme Courtthe Obama administration’s view that recess appointments are only permissible when Congress is in recess for more than three days. Here’s the exchange with Chief Justice John Roberts:

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?

MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board. If there are no other questions –

CHIEF JUSTICE ROBERTS: Thank you, counsel.

Speaker Boehner called the appointment an “extraordinary and entirely unprecedented power grab,” and noted thatthe position “had not been filled for one reason: the agency it heads is bad for jobs and bad for the economy.”Read his full statement here, and read the statement from Senate Republican Leader Mitch McConnell (R-KY) here.

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